DHARAMCHAND AGARWAL Vs. THE UNION OF INDIA

JUDGEMENT

(1.) The plaintiff whose suit was dismissed by both the lower Courts is the appellant in this Second Appeal. The agent of the plaintiff, Messrs. Walace Flour Mills, Bombay, delivered to the respondent - Railway 221 bags of wheat flour for transportation and delivery to the consignee, the plaintiff at Hyderabad Railway Station. The goods were loaded into a wagon in the present of the consignor and the consignor was satisfied that the wagon was a watertight wagon. The Train Examiner who inspected the wagon made an entry that the wagon was water tight. It is now no longer disputed that the goods were loaded into a water-tight wagon. When the goods were delivered at the destination on 14-9-57 it was noticed that 25 bags of flour were damaged due to the leakage of rain water into the wagon. Rain water appears to have forced its way into the wagon through the crevices between the door flaps and the walls of the wagon. The consignees claim for compensation. Having been rejected by the Railway authorities he brought the present suit for recovery of damages. The respondent Railway pleaded that they had acted with due care and diligence, that the goods were loaded into a water tight wagon to the satisfaction of the consignor and that the damage was entirely due to the failure of the consignor to provide for proper dunnage as required by Special Condition No.29 of "Goods Tariff". Both the Courts below have found that the damage to the goods was entirely due to the default of the consignor in not providing for dunnage as required by Special Condition No. 29. Both the Courts have also found that there was no negligence or misconduct on the part of the Railway.

(2.) Mr. G.P. Sanghi for the appellant contends that the Railway authorities having accepted the goods it is not open to them to plead that the damage was due to the default of the consignor. He submits that the Railway authorities cannot avoid liability by referring to a condition which, in his submission, the Railway authorities are not entitled to impose.

(3.) Under Section 72 of the Indian Railways Act the responsibility of a Railway administration for the loss, destruction or deterioration of goods delivered to the administration to be arrived by Railway shall,subject to the other provisions ,of the Act, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, Sections 151, 152 and 161 of the Indian Contract Act areas follows:-