RAMAN AND CO Vs. UNION OF INDIA

JUDGEMENT

(1.) The plaintiff who has lost in both the Courts is the appellant in this second appeal. On 23-8-1974, the plaintiff, a partnership firm, booked a consignment of handloom cloth worth Rs. 481.50 through the defendants to be delivered at Naila, and another consignment of handloom goods on the same day worth Rs. 2437.50 to be delivered at Kesigna. As the goods were not taken delivery of by the consignee, they were re-booked to Erode at the request of the plaintiff. Open delivery disclosed a shortage in respect of the consignment booked to Naila of goods worth Rs. 189.25 which claim was settled by the Railways. But, in regard to the consignment to Kesigna open delivery was applied for on 10-4-1975 and it was granted. It disclosed a shortage of goods worth Rs. 749.50 which was not settled by the defendants Railways as, in their view, they are entitled to the protection u/s. 77(2) of the Railways Act. This contention of the defendants found favour with the courts below who dismissed the suit of the plaintiff.

(2.) At the time of admission of this second appeal, a learned Judge of this Court framed the following substantial question of law for consideration : "Whether the Courts below have properly appreciated and applied the principles u/s.77(2) of the Railways Act." It is contended before me that the defendants are liable to pay the value of the goods lost notwithstanding the fact that seven days time from the date of termination of the transit has expired. Sub-secs.(1) and (2) of S.77 of the Railways Act run thus :

(3.) A reading of S.77(2) would show that the Railways can claim protection only in a case where loss occurs after the expiry of the period of seven days from the termination of transit. In this case, according to the respondents, the goods arrived on 23-3-1975, which is the date of termination of transit. If the loss occurs seven days after the termination of transit, the Railways can successfully plead protection u/s.77(2). But, in this case, there is absolutely no evidence as to when-the loss occurred. The evidence of D. W. 1 to which reference was made earlier shows that he was not aware as to when the loss occurred and he also says that the loss may be even during transit. There is no evidence to show that there was no loss of weight during the seven days after transit. The onus is on the Railways to show that no loss, destruction, deterioration or damage had taken place not only during the period of transit, but also during the subsequent period of transit, but seven days after the termination of transit. That the Railways having failed to establish, I must hold that the Railway Administration cannot claim the protection u/s.77(2) of the Railways Act. It is seen from the plaint allegations that a sum of Rs. 46.31 towards freight and demurrage charges was collected by the Railways. Demurrage charge is collected by the Railways if the goods are kept with the Railways after the expiry of the free time. The very fact that demurrage was charged shows that the Railways are also liable to take care of the goods. The Railways can successfully plead in defence the bar of S.77(2) of the Railways Act only when the loss takes place after the period of seven days of termination of transit. In the present case, the Railways have failed to show that the loss did not take place within a period of seven days of the termination of transit. They have also failed to establish that the loss took place after the period of seven days. The conclusion that the Railway Administration is liable for the loss suffered by the plaintiff, is inescapable. The Courts below, therefore, were wrong in not decreeing the suit of the plaintiff for a sum of Rs. 795.81 as claimed. The judgments and the decrees of the Courts below are set aside, the second appeal is allowed and the suit is decreed as prayed for with costs. Appeal allowed.