UNION OF INDIA Vs. MAMCHAND AGARWALLA

JUDGEMENT

(1.) This is a petition under Section 115 of the Code of Civil Procedure against the judgment and decree passed by the Court of appeal below in suits for money. The plaintiff is a dealer in mangoes. The plaintiff consigned certain baskets of mangoes from Eklakshi to Tinsukia and certain other baskels from Katihar to Tinsukia. The normal time for delivery of a parcel consignment is about three to four days; but the plaintiff urged that due to wilful negligence and gross misconduct of the defendant or of his servants the parcels were carried by goods train and reached Tinsukia four days later than the normal time of delivery. The plaintiff filed the suit after serving usual notices. The defendant however challenged the statement regarding delay. The defendant also challenged the statement that the mangoes in the baskets were green and the defendant's case was that there was no negligence or misconduct of his servants and the mangoes were damaged because thev were tendered for despatch in a quite ripe condi lion. The defendant claimed protection under Section 73 (g) and Section 74 of the Indian Railways Act. In the trial Court the defendant did not challenge that the consignments were not carried by goods train The trial Court found that consignments were booked at owner's risk rate and the plaintiff was bound to prove negligence or misconduct of the defendant and the plaintiff could not prove that the defendants were negligent in carrying consignment by goods train. The trial Court further held that in view of exhibits 1 to 1 (B) the plaintiff was estopped from challenging the damage certificates. The trial Court further found that the claim of the plaintiff was inflated and that the notices were good; hut the suit was dismissed as there was no negligence on the part of the Railway Administration. Against that decision, an appeal was filed.

(2.) The appeal Court found that there was no estoppel and further held that the parcel being earned by 901. Up train which is an Express Parcel Train between Katihar and Tinsukia the question of sending the parcel by goods train does not arise. The appeal Court further found that documents were called for from the defendants and those documents were not produced and therefore there was with holding of the documents The appeal Court relied on Section 76 of the Indian Railways Act, and so it was the duty of the Railway administra tion to prove hat the delay and detention was caused not due to the negligence and mis conduct of the Railway Administration; but it found that the Railways not having produced the necessary documents presumption should he made as against the Railways. It further held that the Railway Administralion was not abso lved from the liability and the appeal court granted relief. The substantial point in this case is whether the delay caused in delivery was due to negligence or misconduct of the Railway authorities The trial court referred to Section 74 of the Indian Raiways Act and found it was for the plaintiff to prove positively that there was delay due to misconduct or negligence of the Railway Administration. Whereas the appellate court found that Sec- tion 76 would govern the case and therefore it was for the Railway Administration to prove that the delay or detention arose without negligence or misconduct of the Railway Admi nistration. The first question, therefore, would be whether the case would be governed under Section 74 or under Section 76 of the Indian Railways Act.

(3.) It is urged by Mr. Bose on behalf of the petitioner Railway Administration that Sec-tion 74 would govern the case because the goods were carried at owner's risk rate. There is no dispute that the goods were carried at owner's risk rate. Section 74 (3) provides as follows: