M.M. NAGALINGA NADAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE plaintiff in a suit for recovery of damages is the appellant in this second appeal.A wagon load consignment of 330 tins of coconut oil weighing 66.20 quintals was despatched by him from Quilon to Gulburga by goods train.On taking open delivery of the consignment at Gulburga 51 tins were found completely empty and 68 tins leaking.In Ext,A -1 certificate of damage and shortage dated 15th April 1969 the shortage was noted to be 10.86 quintals of the value of Rs.4,704.The plaintiff issued notice claiming damages,and ultimately instituted the suit for the recovery of a sum of Rs.5,106.19 with further interest at 6 per cent per annum.The courts below have concurrently dismissed the suit holding that under section 77C of the Indian Railways Act,1890,shortly stated the Act,the railway administration was exempted from liability.

(2.) THE main point that arises for consideration is whether,without proving negligence and misconduct on the part of the railways,the plaintiff -appellant would be entitled to obtain a decree for damages when admittedly the goods tendered to the railway administration to be carried by the railway were defectively packed or were packed in a manner not in compliance with the general or special order issued by the Central Government under section 77C(4)of the Act.The counsel for the appellant submitted that the responsibility of the railway adminis­tration under section 73 of the Act is not confined to that of a common carrier,but extends to that of a bailee,under sections 151,152 and 161 of the Indian Contract Act,as held by the Supreme Court in Union of India v. The West Punjab Factories Ltd .( A.I.R.1966 S.C.395)in paragraph 17 at page 401,and in that view the respondent is liable in damages for the loss and deterioration of the portion of the goods consigned by the appellant in the absence of proof that the adminis­tration had used reasonable foresight and care in the carriage of goods.Section 73 of the Act reads as follows: "73.General responsibility of a railway administration as a carrier of animals and goods ."Save as otherwise provided in this Act,a railway administration shall be responsible for the loss,destruction,damage,deterioration or non -delivery in transit,of animals or goods delivered to the administration to be carried by Railway,arising from any cause except the following,namely: (a)not of God; (i)fire,explosion or any unforeseen risk: Provided that even where such loss,destruction,damage,deterioration or non -delivery is proved to have arisen from any one or more of the aforesaid causes,the railway administration shall not be relieved of its responsibility for the loss,destruction,damage,deterioration or non -delivery unless the administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods."

(3.) THE plaintiff has no case that the goods were packed in wooden cases;they were consigned and sent in metal containers in a wagon.In the plaint it is averred that the oil was filled in new tin -plated containers which were water -tight,free from rust,corrosion or leakage,the capacity of each container being four gallons,and tied with ropes on four sides to avoid damage during transit.It is also averred that special care to avoid the tins touching the walls of the wagon was taken by filling the gaps with enough straw.330 tins were loaded very compactly and the whole layer was tied with ropes so as to avoid any damage during transit.The finding of the trial court is that these averments had not been denied expressly in the written statement,and that it should be deemed that this part of the plaintiff's case has been admitted by the defendant by non -traverse.All the same,as already noticed,the courts below refused to grant a decree in favour of the plaintiff on the ground that the railway administra­tion was protected under the provisions of section 77C(i )(b)of the Act,pointing out that the manuscript portion of the forwarding note read: "P/3 not complied with.Not packed in cases " ;.