RUPCHAND DAGDURAM Vs. UNION OF INDIA

JUDGEMENT

(1.) The plaintiffs suit against the Union of India representing the Central Railway Administration for damages due to the loss of goods in transit, has been dismissed by the Additional Judge, Small Causes Court of Poona, on 25th July, 1975. The plaintiff challenged the validity of this decree in this revision application under section 25 of the Provincial Small Causes Court Act. The plaintiff is a registered partnership firm. It was a consignee in regard to 186 bags of Bajra despatched by its seller from Gulbarga. The goods appear to have been despatched on 10-3-1973 and received at Poona on 11-3-1973. When open delivery was taken the goods were found short by 866 kgs. because of the bags being tampered with. A note to this effect was endorsed by the Railway Administration on the delivery note. In due course notices were served under the provisions of the Indian Railways Act as also section 80 of the Code of Civil Procedure and then a suit was instituted for damages. The claim of the plaintiff was based mainly on the allegation that the bags were pilfered in transit due to the negligence of the Railway Administration. In reply to this claim of the plaintiff, the defendant did not dispute the particulars of the consignment, viz. quantum and quality of the Bajra despatched from Gulbarga station as also the contents of the railway receipt relied on. Their defence was that they were not guilty of any negligence and seals were found in tact as endorsed in the same delivery note. The plaintiffs partner examined himself in support of his case, while no witness was examined on behalf of the defendant. The learned Judge dismissed the suit mainly on the ground that no seals being found intact no negligence can be attributed to the Railway Administration. He also observed that the railway receipt was not produced by the defendant and no evidence was led by the plaintiff of the person who had loaded the goods of Bajra. He also further found that the claim at Rs. 1.60 per kg. was not borne out by evidence, even if the plaintiff were found entitled to damages, it could have been granted damages at the rate of Rs. 1.53 per kg. on the evidence led by it.

(2.) Mr. Patankar, the learned Advocate appearing for the plaintiff, contends that the trial Judge entirely misdirected himself by assuming that the burden to prove the negligence is on the plaintiff. He strongly relied on the provisions of section 73 of the Indian Railways Act which were introduced in the Act under the amendments introduced in the year 1961 with a view to make the Railway Administration liable for the goods as a common carrier, burden being entirely thrown on it to show that it could in no way be responsible for the loss of the goods. The contention of Mr. Patankar appears to be well founded. Unfortunately the respondent-Union of India has not chosen to enter appearance in spite of service of summons thereon and I could not have the benefit of hearing their side. I have, therefore, to dispose of the matter in the light of the contentions advanced before me by Mr. Patankar.

(3.) Now, section 73 reads as follows :---