UNION OF INDIA Vs. ALLAUDDIN AULIA SAHIB

JUDGEMENT

(1.) THIS is an appeal by the Union Government representing the Central and Western Railways against the judgment and decree of the 2nd Additional District Judge, Khandwa, dated 29 -7 -1958. The suit leading to the decree was instituted by the respondent for recovery of damages to his consignment of tobacco leaves which was booked on 8 -8 -1965 from Kamoli to Burhanpur. When the consignment arrived at Burhanpur, it was found that out of 210 baga in the consignment, 105 bags were damaged by water. On separating the damaged tobacco, it was found that 22 maunds and 30 seers of tobacco was damaged to the extent of 80 per cent, and 23 maunds and 5 seers was damaged to the extent of 50 per cent. The damage was ascertained after four months as per Exh. D -3 on 30 -12 -1955 when the first lot had reduced in weight to 24 maunds and 1 seer and the second lot to 21 maunds and 36 seers on account of evaporation of moisture. The first lot had to be destroyed as worthless and the plaintiff took delivery of the second lot after paying excise duty and used it along with some good tobacco in manufacturing bidis. The plaintiff claimed as damages the price of the tobacco as per invoices, railway freight, excise duty and profit at 30 per cent. He also claimed interest at 6 per cent, per annum. In addition, he claimed the price of 29 seers of tobacco for shortage in weight, value of empty bags, expenses incurred in assorting the tobacco and charges for giving notices. The defendants pleaded that the consignment was booked at owner's risk and so the burden of proving misconduct on the part of Railways or their negligence lay on the plaintiff. They also pleaded that the tobacco was not properly packed. They denied that there was any negligence or misconduct on the part of the Railways. At any rate, the plaintiff was not entitled to profit, sorting expenses, interest and notice charges.

(2.) THE trial Court found that the consignment was booked at railway risk and was not kept in water -tight wagon and that the damage to the consignment was due to the negligence of the railway servants. The Court allowed as damages the cost price of the tobacco, railway freight and excise duty paid. Profit at 10 per cent, was allowed as also interest and notice charges. The claim for shortage and charges for assorting the tobacco were also allowed. The claim was thus decreed for Rs. 10,029 only. Before we consider the merits of the case set up by the parties, we may briefly refer to the responsibility of the Railway Administration as carriers in respect of goods entrusted for carriage. Under section 72 of the Indian Railways Act the responsibility of the Railway Administration is that of a bailee under section 15L of the Indian Contract Act which means that they have to take as much care of the goods as a man of ordinary prudence would, under similar circumstances, take of his own goods. Section 74 -C provides that the goods may be booked either at ordinary tariff rate, known as the "railway risk rate' or at specially reduced rate, known as the 'owner's risk rate'. In the case of goods booked at railway risk rate, the burden of proving proper care of the goods is on the Railway Administration; but in the case of goods booked at owner's risk, the Railway Administration cannot be held liable for damage except upon proof of the damage being due to negligence or misconduct on the part of the Railway Administration. Even when the goods are booked at railway risk rate, the Railway Administration is not liable under section 74 -A if the goods are in a defective condition or are defectively packed and the fact of such condition or packing is recorded in the forwarding note, unless the claimant proves that the damage was due to the negligence or misconduct on the part of the Railway Administration.

(3.) THAT being so, sub -section (3) of section 74 -0 of the Railways Act has no application. An attempt was made by Shri Tambey to bring the case under section 74 -A. He pointed out that the packing in this case was not according to rules, as the consignment should have been packed in "double gunny bags": (See Packing Condition No. 7, Chapter IX, section I, page 322 of the Goods Tariff General Rules, 1959). Section 74 -A has no application to the case in as much as the fact of the defective packing has not been recorded in the forwarding note. As has been recently held by a Division Bench of this Court in Bap Jiwa Khan v. The Union of India C.R. No. 178/61, D/. 30 -8 -1961, the Railway Administration is entitled to the protection of section 74 -A only in cases where the fact of defective packing is noted in the forwarding note. As the case does not fall either under section 74 -C (3) or Section 74 -A, the liability of the Railway Administration is governed by the general provisions in section 72 of the Railways Act. Where a bailment is made to a particular person, the bailee is bound to show that he took reasonable and proper care for the due security and proper delivery of that bailment. The proof of that rebate upon him. Accordingly, it was the duty of the Railway Administration to show that they had taken reasonable care of the goods during transit. In paragraph 3 of the plaint, the plaintiff had alleged generally that 105 bags of tobacco were badly damaged by rain, that the consignment was not loaded in a water -tight wagon and that the Railway servants did not observe the usual precautions laid down by the Railway Rules for protecting the consignment in rainy season. These averments were denied in paragraph 3 of the written statement without stating what care the Railways took to prevent the damage. At the stage of evidence, in addition to the case that the damage occurred in the wagon, the plaintiff also sought to prove that when the consignment arrived at Burhanpur it was unloaded at an open place without adequate protection with the result that when it rained on the night after unloading the consignment became soaked in rain water. Shri Tambey contends that this improvement in the story should not be believed and the plaintiff should be restricted to the case that the damage occurred while the goods were inside the wagon. The plaintiff has used the word "transit" in paragraph 3 of the plaint which is wide enough to over all the period during which the consignment remains in possession of the railway, that is, until the moment it is actually delivered to the consignee. [See Josef and Ismail Company v, Governor -General in Council, 1947 NL J212 :, AIR 1918 Nag. 65 :, ILR 1947 Nag, 335], The pleadings thus cover the damage which was caused after unloading. Further, the case set up by the plaintiff at the evidence stage cannot be considered to be an afterthought in view of the correspondence between the parties which has been placed on record. It is apparent from Exh. D -7, which is a telegram dispatched by the Station Master to the higher authorities on 12 -S -1955 as soon as the wagon arrived, that it was found on unloading that 105 bags were partly wet and damaged. The damage was discovered as soon as the wagon arrived and must, therefore, have occurred while the bags were in the wagon. Exh. P -16 is a letter, dated 13 -8 -1955, by the respondent to the Station Master, Burhanpur, in which he complained that the bags were found damaged by rain on arrival and be further added that "wagon was emptied in open in a shallow place. The tat parties were defective. Consequently, when it rained last night, most of the bags got soaked in water". The complaint about the damage which occurred after unloading was made on the very next day after the unloading. The railway was, therefore, well aware of the grievance of the plaintiff. Shri Tambey suggests that the story about damage being caused by rain on the night of 12 -8 -1955 must be false, as the number of bags which were found damaged on unloading remains the same after the alleged damage by rain in the open. The coincidence is not at all surprising inasmuch as it is possible that the damage caused by rain on that night may have been caused to a lesser Dumber of bags in which case the total number of bags damaged would be the same, though the extent of damage would be aggravated. On the evidence on record, we are satisfied that the damage to the bags was caused both while they were inside the wagon and also when they were unloaded in an uncovered place and were not adequately protected from rain.