A V BHATT Vs. UNION OF INDIA

JUDGEMENT

(1.) Liability of the railway administration for the alleged damage in transit is the short question for consideration in this second appeal filed by the plaintiff. Both the courts dismissed the suit holding that burden of proving negligence is on the plaintiff and he did not discharge the burden. Contention is that the burden was wrongly cast.

(2.) Appellant is the consignee. The consignment of 440 bags of M.S. wire nails was despatched under Ext.B1 railway receipt from Tatanagar to Ernakulam goods station on 31-8-1977. It reached destination ia time on 25-9-1977. 127 bags were found drenched in water and portion of the contents rusted. Delivery was taken after assessment of damages. Rs.7,992.87 is the claim. Actual damages assessed by court after mitigation of resale value is Rs.5,246.38.

(3.) Consignment was despatched on payment of railway; risk rate under S.74. Waggon was allotted on the application of the consignor who loaded in his sidings without any supervision from the railway staff. It was the sealed waggon which was entrusted for carriage. Quality and quantity were entered ia Ext.B1 only on the information conveyed by the consignor. There is no short delivery or delay causing damage. The only item of negligence alleged is leakage of the waggon which resulted in entry of rain water which caused rusting. The witnesses examined are only Pw.1 and Dw. 1. Pw.4 (plaintiff) could only say that 127 bags were found wet and rusted at the time of delivery. He does not know the conditions of goods at the time of despatch. dw. 1 said that at the time of despatch there was no occasion to ascertain whether the consignment was wet or rusted. Consignor or his employees were not examined. An attempt made in that respect was not pursued. It is not known whether the waggon was leaky at the time of loading.