UNION OF INDIA Vs. FIRM CHHITARMAL RAM DAYAL

JUDGEMENT

(1.) THIS revision by the defendant has been referred to a larger Bench by a learned single Judge because he entertained doubt on the question as to whether the decision rendered in Prabhu Lal v. Union of India (1970 All LJ 28) has been rightly distinguished by learned Single Judges in Babu Ram Kanhaiya Lal v. Union of India (1974 All LJ 912) and Kanpur Leather Corpn. v. Union of India in Second Appeal No. 4202 of 1965, decided on October 24, 1973 (All.).

(2.) THE relevant facts giving rise to this revision are that the plaintiff-respondent consigned a wagon load of 675 tins mustard oil from Belanganj to Cuttack at railway risk. THE packing undisputedly was defective and at the destination some of the tins despatched were found to be damaged and partly empty while some others were found to he entirely empty. THEre being a short delivery of the consignment, the plaintiff instituted a suit for recovery of Rs. 1000/- against the defendant applicant. THE claim was resisted on the ground that there was defective packing of the goods consigned and consequently the railway was not responsible for the loss, if any. THE trial court dismissed the suit on the ground that under S.77-C (2) of the Indian Railways Act the burden lay on the plaintiff to prove misconduct and negligence on the part of the defendant and since the plaintiff had failed to lead any evidence on this question the, suit could not succeed. On revision, the learned District Judge allowed the revision and decreed the claim holding that since the railway had led no evidence showing how the consignment had been dealt with it had failed to discharge its burden as a bailee and hence the plaintiff's claim was liable to be decreed. In the view of the learned District Judge, the railway administration should have led evidence establishing careful handling of the consignment and lack of negligence on their part. THE revision, as already stated, has been referred to a larger Bench because of the apparent conflict of opinion between a Division Bench decision of this Court and Single Judge decisions.

(3.) M.P. Mehrotra, J. in Bahu Ram Kanhaiyalal v. Union of India (1974 All LJ 912) (supra) considered the scope of the abovementioned decision and seems to have been of the opinion that even if the railway administration established that the consignment was defectively packed, under Section 74-A of the 1961 Act, it must further give evidence to show how the consignment had been dealt with during the transit as the said fact was within its special knowledge and under Section 106 of the Evidence Act, it was required to disclose initially the manner in which it had handled the consignment and in the event of its failure to disclose this special fact within its special knowledge, the court would draw an inference against the railways. A positive finding was recorded by the learned single Judge that the packing of the consignment was defective. The test provided in Prabhu Lal v. Union of India (1970 All LJ 28) (supra) was consequently satisfied and according to the Division Bench view of this Court it was for the consignee to establish that the loss could not have been relatable to the defective consignment. On the finding recorded that the consignment was defectively packed, the observations made by M.P. Mehrotra, J. are clearly in conflict with the Division Bench decision in Prabhu Lal v. Union of India which was binding on the learned Single Judge. The decision by A. Banerji, J. in Kanpur Leather Corpn. v. Union of India, Second Appeal No. 4202 of 1965 (All) is clearly distinguishable. The learned Judge recorded a finding that one of the three conditions, which, according to the decision in Prabhu Lal v. Union of India was liable to be established by the railway administration, had not been established in the case before him. The decision in the abovementioned case cannot be consequently considered as running counter to the views expressed in Prabhu Lal v. Union of India. In the instant case, there is a concurrent finding by both the courts below that the mustard oil despatched by the plaintiff-opposite party had been consigned in tins which were not packed in accordance with the prescribed rules on the subject. The court below, however, relying on Babu Ram Kanhaiya Lal v. Union of India, held that since the applicant had failed to lead any evidence to show how the consignment had been handled during transit the claim of the apposite party must be decreed. We have already noted that the decision relied on by the court below is in conflict with the opinion of a Division Bench of this Court. The court below has noticed that the plaintiff has led no evidence to establish the negligence or misconduct of the railway or its servants. Under the circumstances, it was for the plaintiff-opposite party to have established by positive evidence that the loss in the consignment could not have been occasioned as a consequence of the defective packing of the conginement of oil. The plaintiff-opposite party led no evidence whatsoever.