UNION OF INDIA Vs. RAM PRASAD

JUDGEMENT

(1.) This is a defendant's second appeal arising out of a suit for realisation of Rs. 10,306/- along with interest claimed as damages against the Union of India through the General Manager, North Eastern Railway, Gorakhpur.

(2.) The case of the plaintiff-respondents was that consignment consisting of 245 bags of onion was boated on 3rd June, 1978 at Sahatwar Railway Station of North Western Railway. The consignment was to be delivered at Silchar to the Arhatia of the plaintiffs. Admittedly plaintiff No. 1 is the owner of the consignment and the plaintiff No. 2 is his servant. According to the plaint allegations the consignment ought to have reached Silchar within ten days but factually the same reached on 29th June, 1978 in a rotten condition. Consequently assessment delivery was taken. It was found that 233 bags of onion were completely rotten and only 12 bags were partially rotten. It was alleged that the loss had occurred due to the negligence of the servants of the defendant-appellant. The defendant in their written statement admitted the consignment. It was alleged that the consignment was booked at owner's risk rate. The defence was that the consignment itself was not of good quality and that is why it perished during transit. Negligence in handling the consignment was denied. After framing the issues, the trial court dismissed the suit. Hence the plaintiff-respondents had filed an appeal before the lower appellate court which has been allowed by the impugned judgement. It has been held by the lower appellate court that the defendant-appellant had not properly explained the handling of the consignment between Chhapra and Kathihar. It was further held that since the defendant had failed to disclose the facts as to how the goods were handled in transit, adverse inference against the defendant was liable to be drawn. In the result the appeal was allowed and the suit of the plaintiff-respondents was decreed by the lower appellate court.

(3.) I have heard Sri Sudhir Narain Agrawala, learned counsel appearing for the Union of India. During the course of his submission, he has strongly relied upon a single Judge decision of the Calcutta High Court in the case of Union of India v. Mamchand Agarwalia, AIR 1967 Cal 133 and Sobharam Jokhiram v. Union of India 1970 Pat 182. Relying on the aforesaid two authorities, it has been strenuously contended by the learned counsel appearing for the defendant-appellant that since in the present case the goods were sent at the owner's risk rate the case is covered by the provisions of S.74 of the Railways Act (hereinafter referred to as the Act) and that in view of the aforesaid decision of the Calcutta High Court which has been followed by the Patna High Court in the said case, it is clear that the operation of S.76 of the Act is controlled by S.73 of the said Act. According to the learned counsel since S.73 is excluded by S.74, therefore, the proper provision applicable in the present case will be S.74 and not S.76 of the Act.