UNION OF INDIA Vs. PRABHULAL HARILAL

JUDGEMENT

(1.) THERE is no dispute over most of the facts. Plaintiff claimed Rs 353. 25 P for short delivery of 157 Kgs. of refined groundnut oil out of 660 tins booked from Wadi bunder in Maharashtra to Balasore. The tins were packed with straw tied with ropes, but were not packed in wooden cases. Plaintiff's case is that the shortage is due to negligence and misconduct on the part of the servants of the defendants.

(2.) THE defence case is that loading and unloading of the consignment which was a whole-load wagon was done by the sender and consignee at the forwarding and destination stations respectively. The tins were not pack ed in cases or crates as required under the Railway Rules. The forwarding notes contain ed the following remarks :-"tins new. Not packed in oases. Packed with grass and fixed by rope " the consignment reached the destination station with seals intact. Thus, the admitted position on facts is that the senders consigned the goods and in their presence the wagon was riveted and sealed. The seal was intact at the destination station. The learned S. C. C. , Judge found that in the presence of the consignees the wagon was unloaded It follows that the Railway servants could not have removed any part of the oil tins The learned S C C , Judge decreed the suit holding that the Railway administration are responsible for the loss in transit of goods delivered to the administration to be carried by railway, under Section 73 of Indian railways Act, hereinafter referred to as the Act According to him the Railway was liable for the loss, mainly because if the tins had not been properly packed. Railway servants at the station of delivery would not have accepted the goods. The learned Judge, however, missed the expression 'save as otherwise provided in this act the opening clause of Section 73.

(3.) SECTION 77-C (1) (b) lays down that when any goods tendered to a railway administration to be carried by railway are either defectively packed or packed in a manner not in accordance with the general or special orders, if issued under Subsection (4) and as a result of such defective or improper packing are liable to damage, deterioratoin, leakage or wastage, and the fact of such condition or defective or improper packing has been recorded by the sender or his agent in the forwarding note, then notwithstanding anything contained in the foregoing provisions of this Chapter (Section 73 is one of such provisions) the Railway administration shall not be responsible for the damage, deterioration, leakage or wastage or for the condition in which such goods are available for delivery at destination, except upon proof of negligence or misconduct on the part of the railway administration or of any of its servants