JUDGMENT
U.N. Sinha, J.
1. This appeal has been preferred by the defendant. The plaintiff had instituted a suit for recovery of Rs. 1,051/9/9 as compensation for the loss and destruction of certain goods during transit in the railway. The plaintiff’s case was that on 9-4-1951, a consignment of 308 tins of Vansapati had been hooked from Rishra Mills Siding to be delivered to the plaintiffs at Giridih.
When in due course the delivery of the tins was taken on 18-4-1951 at Giridih Railway Station, it was found that 51 out of 308 tins had been badly damaged and that the contents of the damaged tins were less than what they had originally contained. Each tin originally contained 19i seers of Vanaspati. At the time of taking of delivery the total contents of the 51 damaged tins weighed only 12 Mds, 9 seers and 8 chataks. Thus there was a shortage of 11 mds., 2 seers and 4 chataks.
A shortage certificate to this effect had been granted to the plaintiff at Giridih Railway Station at the time of taking of delivery. The plaintiff thereafter submitted a written claim demanding compensation to the extent of Rs. 1,051/9/9 as being the price, of Vanaspati lost in the transit. The
plaintiff’s claim having been refused, the present suit was instituted in due course.
2. The defendant contended that the consignment had not been packed according to the Tariff rules and that the loss was due to leakage as a result of improper packing and not due to negligence or misconduct on the part of the railway administration or its servants. It was also contended that the consignment was booked at owner’s risk rate and that the plaintiff was not entitled to any compensation. The defendant had also raised some other pleas but those contentions do not require any further consideration.
3. It was held by the learned Munsif who tried the suit that the loss suffered by the plaintiff was due to negligence of the Railway administration and its servants and that therefore, the plaintiff was entitled to recover compensation as claimed by him. The suit having been decreed fully, the defendant went up in appeal to the court of appeal below. The decree of the first court for recovery of Rs. 1,051/9/9 was affirmed. The decree of the learned Munsif was modified to the extent that interest pendente lite and future interest were refused to the plaintiff.
4. The learned Additional Subordinate Judge has held that the materials on record do not justify an inference of misconduct but those materials raise an inference of negligence on the part of the Railway Administration. The ultimate finding of the learned Additional Subordinate Judge has been arrived at upon the reasonings stated by him thus:
“It has been held in several cases that the loss or damage of the goods entrusted to a railway for transit is itself a prima facie evidence of negligence and the onus, therefore, lies on the railway
administration as a bailee to disprove negligence.
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In other words, this principle is expressed by saying that loss or damage to the goods is prima facie proof of negligence. When evidence has been adduced on both sides, as in the present case, the question of onus is immaterial and the only thing which had to be decided is whether from the materials on record an inference of negligence on the part of the railway administration in dealing with the consignment in question can be drawn.
It is open in such a case to draw a presumption of negligence from the factum of loss or damage to the goods if there is no evidence to explain the circumstances under which the loss or damage was caused or if the explanation is unsatisfactory.”
5. Mr. Bose, appearing for the appellant, has contended that the decision of the court of appeal below is mainly based upon interpretation of Section 72 of the Indian Railways Act. He has urged that the learned Judge has committed an error in that respect, inasmuch as the case is really governed by the provisions of Sections 74A and 74C of the Act. The contention of learned Counsel appears to be of substance. Section 72 (1) of the Act runs thus:
“72 (1) The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by Railway shall, subject to the other provisions of this Act, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872 (IX of 1872)”.
The learned Additional Subordinate Judge in dealing with Section 72 has stated thus:
“According to Section 72 of the Indian Railways Act, the responsibility of a railway administration
for the loss of goods delivered to it for carriage is that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act. According to Sections 151, 152 of the Contract Act the Railway Administration, as a bailee is bound to take as much care of the goods as a man of ordinary prudence would take under similar circumstances and if it has done so it is not responsible for the loss, destruction or deterioration of the consignment handed over to it for despatch.”
It is apparent that the learned Judge has omitted to notice the words “subject to the other provisions of this Act”, occurring in Section 72 (1) of the Act. This leads us to Sections 74A and 74C of the Act to which my attention has been drawn by Mr. Bose.
6. Although the learned Additional Subordinate Judge has referred to the ingredients of Sections 74A and 74C, he has failed to appreciate the import of the said provisions. Sections 74A and 74C are as follows :
“74A (1) When any goods tendered to a railway administration for carriage by Railway-
(a) are in a defective condition as a consequence of which they are liable to deterioration, leakage, wastage or damage in transit or
(b) are either defectively packed or packed in a manner not in accordance with the general or special order, if any, issued under Sub-section (2) and as a result of such defective or improper packing are liable to leakage, wastage or damage in transit, and the fact of such condition or defective or improper packing has been recorded by the sender or his agent in the forwarding note, the railway administration shall not be responsible for any deterioration, leakage, wastage or damage or for the condition in which such goods are available for delivery at destination except upon proof of negligence or misconduct on the part of the railway ad” ministration or of any of its servants.
(2) The Central Government may by general or special order prescribe the manner in which goods tendered to a railway administration for carriage by railway shall be packed.”
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“74C. (1) When any animals or goods are tendered to a Railway administration for carriage by railway and the railway administration provides for the carriage of such animals or goods either at the ordinary tariff rate fin this Act referred to as the railway risk rate) or in the alternative at a special reduced rate (in this Act referred to as the owner’s risk rate) the animals or goods shall be deemed to have been tendered to be carried at owner’s risk rate, unless the sender or his agent elects in writing to pay the railway risk rate.
(2) Where the sender or his agent elects in writing to pay the railway risk rate under Sub-section (1) the Railway Administration shall issue a certificate to the consignor to that effect.
(3) When any animals or goods are carried or are deemed to be carried at owner’s risk rate, a railway administration shall not be responsible for any loss, destruction or deterioration of or damage to such goods from any cause whatsoever except upon proof that such loss, destruction, deterioration or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants.”
Indeed, in considering the provisions of Sections 74A and 74C of the Act the learned Judge has correctly stated that the Railway administration shall not be responsible for any deterioration, leakage or damage
except upon proof of negligence or misconduct on the part of the railway administration or its servants. The learned Judge has also said that in the present case the plaintiff can succeed even if he is able to prove negligence on the part of the Railway Administration or its servants if from the materials on the record it can be inferred that there was such negligence.
It is apparent that upto this point in the reasoning of the learned Additional Subordinate Judge, his approach was quite correct. But thereafter in coming to his conclusion regarding negligence on the part of the Railway administration upon what he calls to be “material on record” the learned Judge has misdirected himself. He has erroneously held that the loss or damage of goods is prima facie proof of negligence, in a case which is governed by Sections 74A and 74C of the Indian Railways Act.
Section 74A clearly lays down that the Railway shall not be responsible except upon proof of negligence or misconduct on the part of the Railway Administration or any of its servants. Section 74C lays down that the Railway Administration shall not be responsible for any loss, destruction or deterioration or damage except upon proof that such loss, destruction, deterioration or damage was due to negligence or misconduct on the part of the railway administration or any of its servants.
When the statute requires proof of negligence, misconduct etc., for the liability for the loss, destruction, deterioration, leakage etc., to hold that the loss or damage is prima facie proof of negligence as to make the entire effect of Sections 74A and 74C nugatory. Here lies the importance of the qualifying words “subject to the other provisions of this Act” occurring in Section 72 of the Indian Railways Act.
Of course, in coming to a finding of negligence or misconduct the learned Judge may be correct in holding that when evidence has been adduced on both sides the question of onus is not material but then the only material on the record relied upon by the learned Judge for coming to his conclusion of negligence on the part of the Railway administration is the fact of the loss. The judgment of the learned Judge is wrong in this respect.
Mr. Mukharji appearing for the respondent has urged that in coming to the finding of negligence, the learned Additional Subordinate Judge has also taken into consideration the facts that the tins of vanaspati were new tins and that they were put on straw placed on the floor of the wagon. But even on these facts the inference of the learned Judge that the damage to the tins could not have been caused in the ordinary course without negligence on the part of the Railway administration is not sustainable.
It must be remembered that the consignment was not tendered to the Railway for carriage packed according to the tariff rules contemplated by Section 74A of the Indian Railways Act and that the consignment was on transit for nine days. Under these circumstances, it was necessary for the plaintiff to put materials before the court to prove negligence or misconduct on the part of the Railway Administration or of any of its servants. The learned Judge on appeal has omitted to notice that according to Exhibit F, a direction had been pasted on the door of the wagon in question prohibiting loose shunting of the wagons.
In my opinion, the learned Judge has erred in holding that it was the duty of the railway administration to show, in his particular case, that the wagon was not loose shunted or that as a matter of fact, the damage was caused in the ordinary course of transit.
7. The decision in Dwarkanath v. Rivers Steam Navigation Co. Ltd., reported in AIR 1917 PC 173, mentioned in the judgment of the learned Additional Subordinate Judge, is not of much assistance to the plaintiff. That decision was not dealing with any provisions corresponding to the provisions of Sections 74A and 74C of the Indian Railways Act. Their Lordships of the Privy Council were dealing with a case governed by Sections 151 and 152 of the Indian Contract Act.
The instant case will be governed by the special considerations laid down in Sections 74A and 74C of the Indian Railways Act, inasmuch as Section 72 of the Indian Railways Act states that Sections 151 and 152 of the Indian Contract Act will apply subject to the other provisions of the Indian Railways Act.
8. The judgment and decree passed by the
court of appeal below must, therefore, be set aside
and the plaintiff’s suit dismissed with costs through
out.