MAMCHAND MULCHAND FIRM THROUGH HARIRAM SINGHANIA AND ANR. Vs. UNION OF INDIA (UOI) THROUGH THE GENERAL MANAGER, SOUTH EASTERN RAILWAY AND ANR.

JUDGEMENT

(1.) THE two suits out of which these appeals arise were filed by the Plaintiff Appellant against the railways for alleged deterioration to two consignments of A.D. Dyes despatched from Wadibunder on the Central Railway deliverable to the Plaintiff at Jharsuguda on the South Eastern Railway. first Appeal No. 18/1960 arises out of Money suit No. 37/1958 for recovery of the sum of Rs. 6485.89 N.P. as damages in respect of a consignment consisting of 23 drums of A.D. Dyes. First Appeal No. 37 of 1961 arises out of Money suit No. 203/1958 for recovery of Rs. 1039.22 nP. as damages for a consignment consisting of 16 drums of A.D. Dyes, both the consignments booked and dispatched from Wadibunder deliverable to the Plaintiff at Jharsuguda as aforesaid. Both the said suits were analogously heard and were dismissed by the trial court. Hence this appeal.

(2.) THE short facts are these: On August 1, and 3, 1957 the said two consignments consisting of total 39 drums of A.D. Dyes were hooked and delivered at Wadibunder Railway Station for being safely carried and delivered at Jharsuguda Railway Station. The consignments were carried at railway risk rate .The said consignments reached Jharsuguda on August 30, 1957 .On the night of August 30, 1957, there was heavy downpour of rain. On August 31, 1957, three drums were delivered to the Plaintiff and the rest of the drums were not delivered. The remaining drums were delivered on January, 5, 1958 in damaged condition as alleged. The Plaintiff's case is that the alleged damage was due to the negligence, carelessness and misconduct on the part of the railways and their employees in not carrying the consignments in well -secured carriage or wagon and in not taking proper care and precaution so long as the consignments were in their custody, possession or power and as such the railways are bound to make good the loss. The defence of the Defendant South Eastern Railway who contested the suits is that there was no negligence on the part of the railways and that there was inherent vice in the goods before booking for which the railway administrations are not liable; that the railway administrations took all precautions as a bailee and there was no negligence or misconduct as alleged.

(3.) THE undisputed legal position in the light of which the points involved are to be decided is this: On the question of liability Section 72 of the Railways Act as applicable to this case provides that the responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee, under Section 152 and 161 of the Indian Contract Act. Section 152 of the Contract Act provides that the bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151 of the Contract Act provides that in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, taken of his own goods of the same bulk, quality and value as the goods bailed. Under Section 150 of the Contract Act the bailor is bound to disclose faults in the goods bailed. As regards extent of damages, it is for the Plaintiff to prove the degree of the alleged deterioration of the goods on the basis of which the Plaintiff claims damages; Where a consignment of goods despatched by rail is damaged and a suit is brought against the railway for damages, the onus of proving the value of the goods booked and the extent of damage caused to the goods is on the Plaintiff. A damage certificate, on which the Plaintiff relies, states only the facts that the damage had, in fact, been caused to the goods but it does not amount to an acknowledgment of fact that the damage was caused by negligence or misconduct on the part of the railway officers.