Patna High Court
Union Of India (Uoi) As Owner Of South ... vs Ram Kumar Agarwala And Anr. on 2 December, 1966
Equivalent citations: AIR1967PAT447, AIR 1967 PATNA 447
JUDGMENT U.N. Sinha, J.
1. This appeal has been filed by the Union of India as owner of the South Eastern Railway Administration, being a defendant in the suit. It arises out of a suit instituted by the plaintiff-respondent for compensation for short delivery of 19 maunds 2 1/2 seers of cocoanut oil out of a consignment of 660 tins, booked from Aleppy Out Agency to Ramgarh Town. The suit has been decreed by both the courts below substantially, except that interest has not been allowed.
2. The facts relevant for the decision of this appeal are as follows: The plaintiff alleged that a consignment of 660 tins of cocoanut oil was booked at Aleppy Out Agency and was made over to the Southern Railway for carriage and the consignment was to reach Ramgarh Town on the South Eastern Railway. A railway receipt had been granted and the plaintiff was the holder of the railway receipt in due course and was beneficially entitled to the goods consigned. When the consignment was delivered to the plaintiff, the condition of some of the tins was damaged and the damage was assessed by the authorities concerned and a short certificate was granted. According to the plaintiff, he had suffered damage to the tune of Rs. 1715.62 paise.
It was alleged that the damage had been caused due to the negligence and misconduct on the part of the Railway administration and Its servants. Notices under Section 77 of the Indian Railways Act and under Section 80 of the Code of Civil Procedure were said to have been served upon the authorities concerned. With respect to the case of the defendants, only the following need be mentioned at this stage. In paragraph 7 of the written statement it was mentioned that the oil had been booked at owner's risk. II was also contended that the consignment had been loaded in a certain wagon which was riveted and sealed and the wagon had been received in Ramgarh Town with the seals and rivets intact. All allegations of negligence or misconduct on the part of the Railway administration or their servants were denied It was alleged that the loss had taken place under cercumstances beyond control in spite of all care having been taken as the bailee.
3. There was an issue in the trial court (issue no 6), as to whether there was any negligence or misconduct on the part of the Railway or its servants and the trial court held, under this issue, that the Railway was responsible as a bailee, in view of Section 74A of the Indian Railways Act. The trial court also accepted the plaintiff's case of negligence and misconduct on the part of the Railway authority. The court of appeal below has in substance affirmed this conclusion holding that negligence of the railway administration had been established.
4. Learned counsel for the appellant has contended that the court of appeal below has erroneously held that the consignment had been booked at railway risk rate, whereas it should have been presumed in this case that the consignment had been booked at owner's risk rate. It is argued that if the consignment had been booked at owner's risk rate, then the suit is bound to fall, as negligence or misconduct on the part of the Railway administration or its servants had not been established. According to the learned counsel for the plaintiff-respondent, Section 74A of the old Indian 'Railways Act was attracted and the court of appeal below has rightly proceeded on the footing that the consignment had bean booked at railway risk rate.
However, I am of the opinion, on the materials on record, that the court of appeal below has erroneously stated that the consignment had been booked at railway risk rate, and that it must be presumed under Section 74C (1) that the consignment had been booked at owner's risk rate, In view of Sub-section (2) of that section. It may be mentioned that the plaint had not mentioned as to whether the consignment had been booked at railway risk rate or at owner's risk rate As indicated earlier, the written statement had mentioned that the consignment had been booked at owner's risk rate. Learned counsel for the plaintiff respondent has drawn my attention to the evidence of Gobind Lal Agarwal (P.W. 2) where he has stated that the consignment had been hooked at railway risk rate.
But when the written statement had mentioned that the consignment had been booked at owner's risk rate it was the duty of the plaintiff to produce the certificate which he must have obtained under Section 74C(2). If the consignment had been booked at railway risk rate. Mere oral statement on such a disputed matter cannot be held to be sufficient, as Section 74C(1) states that goods shall be deemed to have been tendered at owner's risk rate, unless the sender or his agent etects is writing to pay railway risk rate. If the sender or his agent elects to pay railway risk rata, the Railway administration is bound to issue a certificate to that effect to the consignor. Proceeding on the footing that the consignment had been booked at owner's risk rate, Section 74C(8) required that the plaintiff was bound to prove that the loss of 19 maunds and odd of cocoanut oil, consigned in this case was due to negligence Or misconduct on the part of the Railway administration or its servants.
In this case, the wagon had arrived at Ramgarh Town with the rivets and the seals intact and the Railway had no other duty to discharge to prove that it was not liable of the compensation for the loss. It is clear that the court of appeal below was of the opinion that as the Railway had failed to bring on the record any forwarding note executed by the consignor, the tins consigned were able to leakage in transit. Apparently, the court of appeal below had also in mind Section 74A of the Act. But it is clear that even if defective or improper packing has not been recorded by the sender or his agent in any forward note no consequence follows in case the consignment was at owner's risk rate and if the plaintiff fails to prove negligence or misconduct on the part of the Railway administration or its servants. Even if it is assumed that the contents consigned were not in a defective condition in that case also the provisions of Section 74C(3) were attracted, if the goods were carried at owner's risk rate. In my opinion, the court of appeal below has wrongly stated that the burden to disprove negligence or misconduct lay on the railway administration in this case as the consignment had been booked at railway risk rate. Apparently, the court of appeal below has fallen into an error in stating that it has got to be assumed that the consignment had been booked at railway risk rate, specially in the absence of the forwarding note.
5. It is clear that the suit has been wrongly decreed by the courts below, The appeal must, therefore, succeed and the plain tiff's suit is dismissed But under the circum stances, the parties should bear their own costs throughout.