KANHAIYALAL KAMAL SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) this Second Appeal has been filed by the plaintiff. Both the Courts below dismissed the suit of the plaintiff on the ground that in the forwarding note an endorsement was given that the packing of the consignment was not in conformity with the Rules and as such the Railway Authority can claim the benefit of Section 77(C) of the Indian Railway Act (old). Reliance was placed by the plaintiff in two Judgments - AIR 1974 Calcutta 207 (V 61 C 44) (Union of India Vs. Laduram Fakirchand, Opp. party) and AIR 1971 Bombay 52 (V 58 C 11) (Union of India, owning South Eastern Railway, Administration, Calcutta, Applicant Vs. Ramprasad Mukhand Agarwal, Opponent) wherein In AJ.R. 1974 Calcutta 207 a Single Bench of the Calcutta High Court has held, inter-alia, as follows :- "In my view, therefore, in older that the Railway Administration may be absolved of its liability under Section 73, it is necessary that in the forwarding note not only there should be a recording about the defective or improper packing of the goods but also it should be further recorded that as a result of such defective or improper packing the goods are liable to damage, deterioration, leakage or wastage."

(2.) This Calcutta decision was not accepted as a correct decision by a number of High Courts in our Country, In AIR 1980 Kerala 90 (Babu Oil and Flour Mills, Appellant Vs. Union of India and others, Respondents) wherein in paragraph-7, it has been categorically stated as follows :- "7. The object of Section 77C and the rules framed in regard to package is to protect the railway administration in case where damage occurred for reasons connected with defective packing. Where damage is so caused, unless negligence or misconduct on the part of the railway administration is established, a claim for damages would be unsustainable. As the railway receipts and the forwarding notes in the instant case contained the endorsement that the packing conditions had not been complied with, railway administration is not responsible in so far as the packing conditions applied, for any damage, deterioration, leakage or wastage except upon proof of negligence or misconduct on its part or on the part of its servants." ,

(3.) In AIR 1971 Bombay 52 in paragraph-10 it has been stated, inter-alia, as follows :-