PRABHU DAYAL LAXMI NARAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) This reference to a larger Bench is made because two divergent constructions of section 77-C(1) of the Indian Railways Act, 1890 (hereinafter referred to as the Act) seem to be possible. One construction results in making the Railway Administration liable for any damage, deterioration, leakage or wastage of goods carried by it, while the other construction exempts the Railway from such liability. We are to consider which of the two construction is to be preferred and why.

(2.) The revision petitioner sent 110 bags of white gram at Railway risk from Sambalpur Railway Station to Delhi. At the time of delivery 383 Kgs. were found short. The trial court assessed the damage to the petitioner at Rs. 200.00 per quintal, but held that it was the duty of the consignor to have provided dunnage as required by the conditions under which the consignment was accepted by the Railway for carriage. The damage to the five bags found near the flap door was due to the non-provision of the dunnage. Since the petitioner did not prove fault or negligence on the part of the Railway, the petitioner's claim in respect of the five bags near the flap door was rejected.

(3.) The contention of the petitioner in the revision is that in the forwarding note the consignor only admitted that the goods were packed in used and single bags and that dunnage had not been provided. Within the meaning of section 77-C(l)(b) this only meant that the goods were either defectively packed or packed in a manner not in accordance with the general or special order, if any issued under subsection (4), for, the said orders required dunnage to be provided. But, according to the petitioner this was not sufficient to exempt the Railway Administration from liability. It was further necessary to state in the forwarding note that such defective packing was likely to result in deterioration, leakage or wastage. Without mention of both these things the exemption from liability did not accrue to the Railway Administration..