UNION OF INDIA Vs. HAJI S UMBICHI KOYA

JUDGEMENT

(1.) THIS is an appeal by the Union of India, against whom the respondent got a decree in O. S. No. 23 of 1964 from the Sub-Court, Kozhikode for a sum of Rs. 14,604/- together with interest at 6% from the date of suit

(2.) THE facts are not in dispute to a large extent. The respondent sent 43 bags of betel nuts from Calicut Railway Station to Shalimar by railway on 24-1-1963. The goods reached Shalimar on 7-2-1963; and they were unloaded and stored in Shed no. 4/1 on the same day awaiting delivery to the consignee. Unfortunately at about 3-00 P. M. on 8-2-1963, a fire broke out in Shed No. 4; and it affected the goods stored in Shed No. 4/1 also, with the result 40 bags of the respondent's goods were partly destroyed. The undestroyed part was refilled in 25 bags; and those bags were delivered to the consignee after assessing the damages at 60%, along with the three bags found in sound condition. On the basis of the market value of the goods at the relevant time, the respondent claimed Rs. 14,604/-as the loss suffered by him. Now there is no dispute about the quantum of the loss. The claim was resisted mainly on the ground that the railway administration was not liable to make good that loss, by virtue of Section 73 of the Indian Railways act, 1890, since the fire was an accidental one, and the goods got damaged for reasons beyond the control of the administration. The trial Court, after a critical examination of the evidence, came to the conclusion "that the causation of the fire can only be traced to want of exercise of reasonable foresight and care on the part of the railway servants" and that the incident happened due to the negligence and misconduct on the part of the railway administration. Accordingly, he found that section 73 of the Act did not give stay protection to the appellant, and it was liable for the loss. The only question canvassed before us is the correctness of the above finding.

(3.) THERE is no dispute that the instant case falls under Clause (V), the loss having been caused by fire. Then the question is whether the Railway has proved that it has used reasonable foresight and care in the carriage of the goods. The loss took place after the goods reached its destination in good condition and were stored in the Railway's shed, awaiting delivery to the consignee. So a subsidiary question arises whether it is a loss which arose in the carriage of the said goods. If it is not so, the appellant is not liable, since the goods admittedly reached its place of destination in good condition. We think that this question is answered by the provision contained in Sub-section (5) of Section 77, which deals with responsibility of the railway administration after termination of transit, Subsection (5) reads: