UNION OF INDIA Vs. BHAGAT RAM PARMA NAND

JUDGEMENT

(1.) Bhagat Ram plaintiff respondent booked 206 bags of onions on 2nd October,1951, from New Delhi to Calcutta under Railway Receipt No. 025841. Invoice No. 871. These goods were loaded in wagon No 3748/ 22. G. I. P. Railway The goods reached Calcutta on 14th October. 1951, and at destination it was found that 69 bags had deleriorated to the extent of 55 per cent while 100 bags to the extent of 46 per cent Plaintiff Bhagat Ram claimed that in due course of transit the consignment booked on 2nd October 1951 should have reached Calcutta and delivered to the consignee on 8th October 1951 but due to carelessness. negligence and misconduct on the part of the railway and its employees, the same reached late and was consequently delivered to him in a damaged and deteriorated condition To prove the period rcquired for journey of goods from New Delhi to Calcutta by a goods train the plaintiff in his plaint and evidence cited an example of another consignment onions looked on 3rd October 1951 under Railway Receipt No 374795 which was delivered to the consignes on 9th October, 1951. at Calcutta The case of the plaintiff was that the onions booked by both the above mentioned wagons were purchased from the samp mount and were of the same quality.According to the plaintiff the goods booked on 3rd October 1951 did not get deteriorated because they reached the destination in time while so far as the goods in question are concerned they got deteriorated because of the delay as mentioned. The onions booked on 3rd October 1951 fetched piaintiff Rs 9144/12/6 while the goods in question were sold for Rs 3248/1/ and the plaintiff claimed Rs 5896/11/6 as damages on account of deterioration on the ground that if the goods had not deteriorated they would have fetched the same amount as the other consignment.

(2.) The goods were admittedly booked on owner's risk and were of a perishable nature. The defendants inter alia alleged that the time taken in transit was a normal one and neither the railway ad,omostration its employers were guilty of any carelessness negligencc or misconduct The trial Court inter alia decided that it was the duty of the railway administration to slow as to how the goods were dealt with in the journey and having failed to do so they were liable for damages The trial Court granted the plaintiff a decree for Rs 4800.00 and arrived at this amount on a finding that the goods in question could have been sold for Rs.8048.20 The lenrned counsel for the appellants has pressed only two points before us (i) that there was no negligence or misconduct on the part of the railway administration the burden to prove which was on the plaintiff and (ii) that the plaintiff had failed to prove that the goods did not deteriorate because of some inherent defect in the quality or because of the presence of moisture therein at the time of booking.

(3.) Before 1949 the Indian Railways Act had provided for various risk notes under which the goods could be booked but by Act 56 of 1949 sections 74C. 74D and some other sections were introduced which were again deleted in 1961. It is the common case of the parties that having regard to the date of booking this case lias to be decided in the light of the provisions contained in the Act after its amendment by Act 56 of 1949 and before sections 74C etc were deleted. S. 74C (3) provides that when the