Patna High Court
Union Of India (Uoi) vs Sadhu Ram on 25 November, 1966
Equivalent citations: AIR1967PAT425, 1968(16)BLJR613, AIR 1967 PATNA 425
ORDER G.N. Prasad, J.
1. This application under Section 25 of the Provincial Small Cause Courts Act has been preferred by the Union of India which, as the owner of the South Eastern Railway Administration, was the defendant in a suit instituted by the plaintiff for recovery of Rs. 722.89 on account of loss of a consignment of three baskets of betel leaves booked at Howrah for delivery at Sini. The consignment was booked under P W Bill No. 054031 on the 23rd May, 1963. It reached the destination station on 26-5-1963, but it was found to have become absolutely rotten and unfit for human consumption and so it was destroyed under the advice of the railway doctor.
The case of the plaintiff was that the consignment was damaged due to negligence and misconduct of the railway staff who took no care, as they were bound to do, to despatch the consignment, which was an article of perishable nature, by the next available train after the booking on 23-5-1963. The plaintiff, accordingly, instituted the present suit after serving the requisite notice upon the General Manager of the South Eastern Rail-way for a decree for the aforesaid sum.
2. The defendant resisted the plaintiff's claim alleging that no responsibility lay with the railways because the consignment was damaged not due to any negligence or misconduct on the part of the Railway Administration, but on account of inherent defect in the consignment itself. The defendant further pleaded that the consignment was despatched by the first available train as provided in Rule 163 of Appendix 'C' of the Standing Orders relating to Goods and Goods Vehicle The defendant also put forward the plea that the plaintiff's claim was highly exaggerated.
3. The learned Small Cause Court Judge has come to the conclusion that the consignment was not despatched by the first available means and that it became rotten and unfit for human consumption due to negligence and misconduct on the part of the Railway Administration. There was no inherent defect in the consignment. As regards the quantum of the claim, the learned Judge has decreed the suit for Rs. 540/ only.
4. The first contention of Mr. P.K. Bose appearing for the Union of India is that the conclusion of the learned Judge to the effect that the consignment was not despatched by the first available means is untenable, based as it is, upon no material on the record. On this question, the learned Judge has referred to the evidence of the Parcel Booking Clerk (D.W.2) of Sini Railway Station who stated that there are three Up trains running every day from Howrah to Sini and the normal time taken for journey between these two stations is 8 or 9 hours. The learned Judge has also pointed out that betel leaves are articles of perishable nature and Rule 163 prescribes that such articles shall be despatched by the first available means. The present consignment having been booked at Howrah on 23-5-1963, it was expected to reach the destination station on the 24th or latest on the 25th May, 1963. But since it reached Sini on 26-5-1963, the learned Judge concluded that Rule 163 was not observed and there was delay in despatching the commodity. This delay does not appear to have been explained on behalf of the defendant. Therefore, I am unable to accept the contention of the learned counsel that the materials do not justify the finding of the learned Judge with respect to breach of Rule 163 on the part of the Railway Administration.
5. The next contention of Mr. P.K. Bose is that the learned Judge was not right in holding that the loss, destruction or damage to the consignment was due to any act of negligence or misconduct on the part of the Railway Administration or any of its servants Learned counsel contended that negligence or misconduct cannot be inferred merely from the fact that the consignment was damaged, and that it was incumbent upon the plaintiff to plead and prove what specific act or omission of the railway servants concerned constituted negligence or misconduct. According to Mr. Bose, the general responsibility of the Railway Administration as a carrier of goods laid down in Section 73 of the Indian Railways Act, as amended by Act 39 of 1961, is subject to the provisions contained in Section 74 of the Act, and if Section 74 is applicable, then the plaintiff cannot succeed by mere proof of destruction or damage to the consignment.
I am inclined to accept the contention of, Mr. Bose to the effect that the general responsibility of the Railway Administration provided in Section 73 of the Act is subject to the provisions contained in Section 74 of the Act. But Sub-section (1) of Section 74 of the Act lays down that a consignment shall be deemed to have been tendered to be carried at owner's risk rate in cases where the Railway Administration has provided for the carriage of such consignment either at the ordinary tariff rate or the railway risk rate, or in the alternative, at a special reduced rate or the owner's risk rate. It must follow that the defendant cannot rely upon the exceptional provisions of Section 74 of the Act unless it proves that both the railway risk rate and the owner's risk rate were available to the consignor for the carriage of the article in question.
6. In the present case, the defendant has neither pleaded nor proved that both the alternative rates had been provided for the Railway Administration for the carriage of a consignment of betel leaves Therefore, from the mere omission of the plaintiff to plead or prove that the consignment was booked at the ordinary tariff rate. I do not find it possible to draw the inference that the consignment must be deemed to have been tendered to be carried at the owner's risk rate. That being so, the defendant cannot get the benefit of the provisions contained in Sub-section (3) of Section 74 of the Act. In other words, the general responsibility of the Railway Administration contained in Section 73 of the Act is not limited in the present case by the provisions of Section 74 of the Act.
It may be pointed out that even under Section 73 of the Act, it is open (o the Railway Administration to escape responsibility for the loss, destruction, damage, deterioration or non-delivery, in transit, of animals or goods, arising from certain causes, such as, act of God, apt of war, and the like mentioned in Clauses (a) to (i) of the section. Rut those considerations do not arise in the present case Therefore, I see no reason why the general responsibility of the Railway Administration for the loss or destruction of the consignment in question cannot operate in the present instance.
7. Mr. Bose relied upon an unreported decision of Mr. Justice U.N. Sinha, sitting singly, in S. A. No. 250 of 1964 D/-13-12-1965 (Pat). In that case, his Lordship held that delay in despatch of a consignment of onions, did not ipso facto lead to an inference of negligence in the absence of any other evidence on record. This decision might have been helpful to Mr. Bose if I were to hold that the plaintiff in the present case cannot succeed unless he proved negligence or mis-conduct on the part of the Railway Administration or any of its servants. But in my opinion, it was not incumbent upon the plaintiff to prove that the consignment had been booked at the ordinary tariff rate. It was for the defendant to plead or prove that the Railway Administration had provided for both kinds of rates for the carriage of the goods, and as such the defendant was entitled to rely upon the provisions of Section 74 of the Act. The unreported decision of U.N. Sinha, J is, therefore, of no assistance to Mr. Bose.
Mr. Rose also relied upon an unreported decision of Misra, J. in S.A. No. 276 of 1961 decided on 17-12-1962 (Pat). But in that case it was found that the consignment had been booked at the owner's risk rate. Therefore, it was held that the onus lay upon the plaintiff to prove negligence or misconduct on the part of the Railway Administration, and such onus was not discharged by the plaintiff in that case. In the present case, I do not find it possible to proceed upon the footing that the consignment was booked at the owner's risk rate because, as I have already indicated, the defendant has neither pleaded nor led evidence on the point that there was provision for carriage of the consignment in question at either of the two rates, namely, the ordinary tariff rate and a special reduced rate. Therefore, the unreported decision of Misra, J. is of no avail to Mr. Rose.
8. The view which I take receives support from certain observations made by a Bench of this Court in its remind order passed on 13-4-1966 in First Appeal Nos. 127, 128, 129, 130, 246 and 247 of 1958 (Pat). In paragraph 26, their Lordships have observed;
"It is manifest that a presumption arises under Section 74C that the goods were tendered to be carried at owner's risk. It the consignor agrees to pay the railway risk rate, the railway administration has to issue a certificate under Sub-section (2) to that effect. The presumption will, however, arise only if the railway 'provides for the carriage' of the goods at two rates, viz., the ordinary tariff rate or alternatively a special reduced rate. No evidence has been adduced by the defendants to show that two such rates were, on the relevant date, provided for the carriage of sugar. That being so, the presumption cannot arise Reference may be made in this connection to a Bench decision of the Rajas-than High Court in Union of India v. Firm Laxmi Narain Har Narain, AIR 1963 Raj 162, paragraph 14, at page 168."
9. Mr. Bose also relied upon a Bench decision of the Orissa High Court in Rasabati Bewa v. Union of India, AIR 1961 Orissa 113. But there the consignment had been booked at owner's risk rate Consequently, it was held that the plaintiff must prove that the deterioration in the goods while in transit was due not only to the delay in transhipment of the article, but also for want of care on the part of the railway servants or its administration. The question as to the circumstances under which the presumption that the goods were tendered to be carried at owner's risk would arise, did not fall for consideration in the Orissa case.
10. From the aforesaid discussion, it is manifest that the Railway Administration is not entitled in the present case to rely upon the exceptional provisions contained in Section 74 of the Act and the case must be decided upon the footing of the general responsibility of the Railway Administration laid down in Section 73 of the Act. Mr. Bose, however, contended that Rule 163 of the Standing Order which prescribes that articles of perishable nature shall be despatched by the first available means, is not a statutory rule, but only in the nature of departmental instructions to be followed by the railway staff concerned, and, as such the plaintiff cannot rely upon a breach of that rule for the purpose of saddling the liability for the damage of the article upon the Railway Administration.
It is true that the plaintiff cannot rely upon the non-observance of any departmental instruction or standing order as such, but Rule 163 has been framed keeping in view the general responsibility of the Railway Administration in respect of articles of perishable nature which are delivered for carriage on a railway, because as common carrier, the Railway Administration was bound to take care of the consignment as a person of ordinary prudence would take in regard to his own articles. If the instruction contained in Rule 163 had been complied with, then the Rail way Administration would have been in a position to show that so far as it was concerned, it had taken all reasonable care for the consignment which had been entrusted to it for transport. The importance of non-observance of Rule 163, therefore, lies in the fact that the Railway Administration cannot plead in the present case that the betel leaves in question which undoubtedly were articles of perishable nature, were damaged despite the fact that it took all such care which a person of ordinary prudence was expected to take in respect of his own property.
11. Mr. Bose then contended that under Rule 163, the Railway Administration was expected to despatch the consignment by the first available means. Laying stress upon the word "available". Mr. Bose urged that it does not mean the very first train that leaves the booking station after the consignment has been tendered for carriage. The answer to this contention is that when an article of perishable nature is accepted for transport, the Railway Administration must be presumed to know that it must be despatched as quickly as possible. Where, therefore, it is not possible to despatch the article by the first train leaving the booking station due to want of space in such train, then the obvious course open to the Railway Administration is not to accept the perishable article unless and until there is space or accommodation available in the train by which the article in question has to be despatched. If the Railway Administration accepts an article of perishable nature for transport, and instead of despatching it by the first available means, it allows the article to remain lying at the booking station for days together, then it cannot maintain that it has taken that care which it is expected to take as a bailee, as provided for in Section 73 of the Act. I am therefore, unable to accept the contention put forward by Mr. Bose and I have come to the conclusion that the Railway Administration cannot escape its liability for the loss or damage to the consignment in the present case.
12. Mr. Bose then contended that the claim put forward by the plaintiff in the present case must fail on the ground that he has adduced no clear evidence with regard to the quantum of his loss. It is pointed out that the bijak (Ext. 1), upon which the plaintiff sought to rely in support of his case, was rightly excluded from consideration. Thus, the only other material on this point was the statement of the plaintiff (P.W. 1) himself to the effect that each basket contained ten thousand betel leaves and the price of one thousand betel leaves was Rs. 18 to Rs. 20.
Mr. Bose contended that the evidence of P.W. 1 cannot be regarded as definite with respect to the price of the betel leaves in question. It must, however, be pointed out that there is no evidence to the contrary on the record, and, therefore, the evidence of P.W 1 remains unchallenged The Court below has accepted the lower rate of Rs. 18 per thousand in preference to the higher rate of Rs. 20 per thousand, as stated by P.W. 1 find has decreed the plaintiff's claimed on that basis. I do not think that the Court be-low acted improperly in this matter. I am therefore, unable to accept this contention of Mr. Bose.
13. For the reasons given above, I up hold the decree of the Court below and dismiss this application with costs. Hearing fee Rs. 32.