UNION OF INDIA Vs. SUBBA RAO AND CO

JUDGEMENT

(1.) A question relating to the meaning and application of section 76-F of the Indian RAILWAYS ACT, 1989 and the burden of proof arising therefrom falls for decision in this Letters Patent Appeal. It is against the decision of Sriramulu, J. in S.A. No 649 of 1972. While partly allowing the second appeal, the learned Judge granted leave.

(2.) The material facts are these :On 28th April, 1966, 350 tins of coconut oil were booked from Shertaley out agency on the Southern Railway for delivery at Kakinada Port railway station. The consignment was on owner's risk rate. The congisnor, after taking a railway receipt in his own name, endorsed it in favour of the plaintiff who paid the value thereon to the Back. The goods were taken from Shertaley out-station and loaded in a railway wagon at Cochin Harbour railway station. Before they were loaded in the wagon, tins were transported from Shertaley on boats. An official of the railway, D.W. 1, looked after the loading. His evidence shows that there were no signs of leakage in the tins when they were loaded in the wagon in the Cochin Harbour railway station. Coconut fibre was padded between each tin and between the rows of tins, and the walls of the wagon and between layers of tins. The wagon was scaled and revetted. The wagon arrived at Kakinada Pott railway station some 38 or 39 days after the loading of the wagon had taken place. Though the seals were found to be intact as spoken to by D.W. 2 there was no oil at all in 20 out of 350 tins and in another 20, 70 per cent of the contents were in shortage. The total shortage of oil was 450 kgs amounting to 32 tins of oil in all. Estimating the value of the oil at Rs. 2, 272 and woh the other incidental charges and interest, the plaintiff firm demanded Rs. 2,747-c 1 ps. from the railways. The plaintiff stated that the loss was entilely due to the abnormal delay, negligence and misconduct on the part of the railway employees. This was resisted by the railways saying that there was no negligence or misconduct on the part of the railways.

(3.) The trial Court found that the claim of the plaintiff was proved and passed a decree for Rs. 2,320. It did not decree the claim for interest. The lower appellate Court, however, dismissed the suit holding that the plaintiff did not discharge the burden cast on it to prove negligence and misconduct-in the second appeal Sriramulu. J. passed a decree in favour of the plaintiff but only for a reduced amount of Rs. 2,130. Though he considered the scope cf very many sections including section 77 he finally rested his conclusion that the case is covered by section 76-F, since there was no disclosure as to how the consignment was dealt with throughout the time it was in its possession or control. The learned Judge came to the conclusion that the railway has not discharged the statutory obligation. Loss under section 114 (g) of the Evidence Act must be presumed to have occurred on account of the negligence or misconduct on the part of the railway. Consequently, the learned Judge thought that this is sufficient to hold that the plaintiff had discharged the light burden that was imposed on him by law in such a case. The railway has brought this Letters Patent Appeal against the ("eciee pasted against it. But there is no appeal or closs objections by the plainliffin respect of the disallowed portion; Venkatarama Reddy, learned Counsel for the railway challenges the view taken by the teamed Judge. His criticiim is that the consideration of various other provisions is erroneous and the case-law has been wrongly applied by the learned Judge. We think all the discussion that is made in the judgment of our learned brother does not really arise in the circumstances of the case. This is a claim which falls squarely and clearly within the ambit of section 76-1-. It may be noted here that it is section 74 that deals with responsibility of a railway administration for animals or goods carried at owner's risk. Sub-section (3) of that section places the burden of proof on the claimant that loss, destivcticn, damage, deterioration of non-delivery in teansit of animals or goods from whatever cause arising was due to negligence or misconduct on the part of the railway administration or of any of its servants, if, the consignment was at the owner's risk rate, Section 76-F however, provides for burden of proving misconduct in case of non-delivery or pilferage in transit of goods earried at owner's risk. Section 76-F is notwithstanding anything contained in section 74. That is to say what is piovided in section 76-F is in the nature of an exception to section 74. That section is in the following terms :