UNION OF INDIA Vs. SITA RAM SAH

JUDGEMENT

(1.) THIS is a defendants second appeal. It was placed earlier before a learned single judge, but in view of some conflict between the decisions of different High Courts and there being no authoritative decision of this Court on the point, he referred the same to a Division Bench and accordingly it was placed before us. The question is as to whether Sec. 76 of the Indian Railways Act is controlled by Section 74(3) or is independent of the same.

(2.) ON 24 -10 -1962, 136 bags of onions were despatched from Hajipur Ghat railway station to Samapur railway station both on the North Eastern Railway. According to the plaintiff's case, the normal time taken in such a transit was only two days, but it reached the destination after an abnormal delay on 12 -11 -1962 when the assessment delivery was taken and the goods were found to have deteriorated to the extent of 60 per cent. Necessary certificate (Ext. 3) was given to the plaintiff to that effect. According to the plaintiff's case, on account of the above deterioration he suffered a loss of Rs. 1,578.10. He accordingly instituted the suit after serving the required notices under the law.

(3.) THE trial court dismissed the suit on the finding that the delay in carriage of the goods was not on account of any negligence but was due to the Emergency on account of the Chinese aggression. On appeal, however, the lower appellate court decreed the suit on the following findings : - (i) the burden of proof of absence of negligence or misconduct was on the railway administration; (ii) the Railways failed to establish that there was any state of Emergency and, therefore, there was no justification for not carrying the consignment through the usual route; (iii) the detention of the consignment in question at Sonepur for five days was neither legal nor warranted by any circumstance that was beyond the control of the railway administration and the inordinate delay was caused due to the negligence or misconduct on the part of the railway administration. Accordingly it decreed the suit in part to the extent of Rs. 1,001.46, against which the present appeal has been filed.